in Re: Dannie Lee Mitchell, Relator ( 2001 )

NO. 07-01-0346-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 12, 2001
______________________________
IN RE: DANNIE LEE MITCHELL
_________________________________
Before BOYD, C.J., and QUINN and JOHNSON, JJ.
Relator Dannie Lee Mitchell applies for a writ of mandamus/prohibition directing
respondent, Honorable Bradley Underwood, to set aside relator’s conviction in Cause No.
93-416,328 in the 364th District Court of Lubbock County, and to enter an order of
acquittal. We deny the petition.
Seeking a “writ of mandamus/prohibition,” relator claims that the indictment
underlying his conviction in Cause No. 93-416,328 in the 364th District Court of Lubbock
County was defective, he was denied counsel before and at the time he pled guilty, and
he received ineffective assistance of counsel after he pled guilty. The documents attached
to relator’s application for writ are copies of (1) an indictment of relator in Lubbock County
for robbery, enhanced by two prior felonies; (2) a judgment of guilty dated January 19,
1993, with a sentence of 25 years confinement in the TDC pursuant to a plea bargain; and
(3) an affidavit of inability to employ counsel and order signed by respondent on January
19, 1993, appointing counsel for relator in Cause No. 93-416,328 in Lubbock County.
Relator asserts that the Court of Criminal Appeals has ruled that defects in an
indictment can be challenged at trial or on appeal. He does not allege or attach
documents, however, showing whether he or his counsel challenged the indictment
pretrial, filed a motion for new trial to assert his current claims of ineffective assistance of
counsel or errors in the indictment, whether he utilized his right to appeal from his
conviction to assert the claims he now makes, or whether he has sought relief post-trial as
permitted by the Code of Criminal Procedure. See TEX . CRIM . PROC . CODE ANN . art. 28.01
(pre-trial motions to challenge form or substance of indictment), art. 44.01 (defendant has
right of appeal), art. 11.07 (writ of habeas corpus seeking relief from felony judgment
imposing sentence other than death); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.
2000) (appellant must offer proof as to ineffective assistance of counsel to prevail on such
claim); Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993) (a complaint of
ineffective assistance of counsel may be raised in a motion for new trial).
A writ of mandamus is an extraordinary remedy that will issue only to correct a clear
abuse of discretion or the violation of a duty imposed by law when there is no other
adequate remedy by law. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305
(Tex. 1994). To establish an abuse of discretion, the complaining party must demonstrate
that the trial court acted unreasonably, arbitrarily, or without reference to guiding rules and
2
principles. See Downer v. Aquamarine Operators, 701 S.W.2d 238, 241-42 (Tex. 1985).
It is the relator’s burden to show entitlement to the relief being requested. See generally
Johnson v. Fourth District Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.
proceeding). Relator must file with the petition a certified sworn copy of every document
that is material to the relator’s claim for relief and that was filed in any underlying
proceeding and a properly authenticated transcript of any relevant testimony from any
underlying proceeding including any exhibits offered in evidence or a statement that no
testimony was adduced in connection with the matter about which complaint is made. TEX .
R. APP . P. 52.7(a).
Relator’s pleadings do not demonstrate that he has not had and utilized, or that he
does not now have, a remedy provided by law other than mandamus relief. Accordingly,
(1) relator’s Motion Request for Leave to File is granted; (2) relator’s Motion of Request
to Suspend Number of Copies to be Filed is granted; (3) relator’s “Writ of
Mandamus/Prohibition” is denied. TEX . R. APP . P. 52.8(a). We offer no opinion on the
merits of relator’s substantive claims as set out in his petition.
Phil Johnson
Justice
Do not publish.
3